CRIME BILL'S COSTS WORRY U.S. JUDGES

The vote total by which the Senate passed an amendment by Sen. Alfonse M. D'Amato (R-N.Y.) imposing the death penalty for homicides committed with a firearm was incorrectly reported yesterday. It passed 65 to 33. A separate D'Amato amendment imposing mandatory minimum sentences for gun offenses passed 88 to 11. (Published 7/23/91)

ByMichael Isikoff

July 22, 1991

The Senate's new crime bill is drawing opposition from federal judges and lawyers who contend it would impose billions of dollars in hidden costs on the criminal-justice system and seriously compound inequities in the sentencing of defendants.

The measure, approved this month by a vote of 71 to 26, also could have a devastating impact on the federal prison system, according to some critics. In addition to imposing the death penalty for 51 crimes, the bill includes a new layer of mandatory minimum sentences for drug and gun offenses, provisions that some experts say could generate tens of thousands of new federal inmates at a time when federal prisons are operating at nearly 150 percent of capacity.

"If these provisions are used, they are going to enormously overwhelm the courts and the prisons," said Eric Sterling, president of the Criminal Justice Policy Foundation, a think tank. "Some of these provisions were totally unconsidered. . . . There was clearly no effort to consider what the costs were."

The executive committee of the Judicial Conference of the United States, the policy-making body for federal judges, last week voted to oppose the most far-reaching of the measure's provisions: an amendment by Sen. Alfonse M. D'Amato (R-N.Y.), approved 88 to 11, that would make homicide committed with a firearm a federal crime punishable by death.

Virtually all murder cases are now prosecuted at the state and local levels. Noting that there were nearly 12,000 homicides committed with guns in 1989, the Judicial Conference committee said the D'Amato amendment could "flood the federal courts," which already face record workloads, with murder cases.

The costs of trying these cases, including creating more federal judgeships and building more courtroom space, would exceed $2.5 billion a year, the Judicial Conference said. But that is a fraction of the potential cost of the measure.

Another D'Amato amendment would mandate a 10-year federal prison term for possessing a firearm during a drug-trafficking crime (defined to include possession of illegal drugs) or crime of violence (defined to include attempting or threatening the use of force against property as well as people). It would mandate a 20-year minimum sentence if the firearm is discharged.

D'Amato's staff could provide no estimates for the total number of offenses that the amendment could cover, but FBI figures show that guns were used in 174,057 aggravated assaults and 169,457 robberies in 1989. There were 1,361,700 drug arrests that year, but there are no figures on how many involved possession of a firearm.

"I could care a hoot about the fact that it may create a burden for the {federal} courts," D'Amato said in an interview last week. "Better a burden for the courts than the continued killing and violence on our streets. . . . When a woman gets shot and killed and loses three babies, you're telling me I should be worried about whether the courts should take on additional cases?

"The federal government cannot simply say this is a local responsibility," the senator added. "The domestic tranquility has been lost. . . . The predators have taken over. . . . The people of America are bleeding. They're living as prisoners in their own home."

Critics of the D'Amato provisions point out that the crime bill does not authorize spending for any new prosecutors, judges and prisons that would be required to implement them.

"It's what we used to call in the state Legislature a rain dance -- a lot of dancing and no rain," said Rep. Charles E. Schumer (D-N.Y.), who as chairman of the House Judiciary crime subcommittee has vowed to oppose the amendments when they are considered in the House. "It's saying, 'Hey, we're going to be doing all these things.' . . . But if you don't increase federal wherewithal, it's not going to accomplish very much."

D'Amato said some of the complaints are overstated, adding that his amendments were intended to permit U.S. attorneys' offices to "complement," not replace, local prosecutors. "They're not going to take every gun offense," said D'Amato. But he acknowledged that "you need billions" to pay for all the judges and prosecutors required by his amendments. He said he is prepared to push for "whatever it costs" if his amendments clear both chambers.

For that reason, the Bush administration has not taken a position on the amendments. President Bush has said the crime bill is one of his top priorities, and administration officials praised the Senate version for including many of their recommendations for expanding federal death-penalty crimes and curbing death-row appeals. The measure also includes a waiting period for handgun purchasers.

But while the administration did not request the D'Amato amendments, "anything that gets through 88 to 11 you take a look at," said W. Lee Rawls, assistant attorney general for legislative affairs. "Clearly, resources are going to be an issue."

Congressional staff members said that D'Amato's amendments face an uncertain fate in the House. While the amendments are believed to have little chance of being included in the House Judiciary Committee's version of the crime bill, the aides said the measures are so politically appealing that they could pass if offered as floor amendments.

Federal judges and criminal defense lawyers also are opposed to the proliferation in the Senate bill of new mandatory sentences, a feature they said has injected a new measure of unfairness into the sentencing of drug offenders.

Such sentences first began cropping up for drug and gun offenses in the mid-1980s and have been affirmed by the Supreme Court -- most recently last month when the court upheld the constitutionality of a Michigan law that mandated life imprisonment without parole for possession of more than 650 grams (slightly less than 1 1/2 pounds) of cocaine. In recent years, the Judicial Conference and seven of the 12 federal judicial circuits, including the D.C. circuit, have taken positions against mandatory sentences, arguing that they fail to take account of individual circumstances and fall as heavily on low-level couriers caught carrying drugs as they do on major traffickers.

"I think you'd find a hard time finding any judge who supports them," said David A. Sellers, spokesman for the Judicial Conference.

In addition to the D'Amato amendment on gun offenses, the Senate crime bill adds or expands mandatory minimum sentences for selling drugs within 1,000 feet of a public-housing project (one year); selling drugs to a minor (10 years); using or "encouraging" a minor to commit any federal offense (three years); and committing a drug-selling crime with three prior state or federal felony convictions (life.)